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Background on Nixon v Vancouver Rape Relief

Legal Proceedings So Far

 

The VRR made a preliminary court challenge arguing that the human rights commission should not undertake any review of Ms Nixon’s complaint because “gender identity” is not listed in human rights legislation as a proper basis for making a complaint. In other words, her complaint should be rejected without any consideration because trans-discrimination is permissible. The court rejected this challenge and found that Ms Nixon’s complaint was based on sex discrimination which is a specific ground of discrimination under the legislation.1

 

The case was finally heard by a human rights adjudicator in 2002. The adjudicator found in Ms Nixon’s favour, finding that the VRR could not justify refusing to hire Ms Nixon in a volunteer position.2 In 2003, the British Columbia Superior Court reversed the human rights award and found that Ms Nixon had not established discrimination.3

 

Implications of the British Columbia Superior Court Decision.

 

The most recent court decision is not only troubling for trans-women but, in fact, has far-reaching implications for anyone who wants to make a human rights complaint. What are the implications of the British Columbia Superior Court decision and what will Egale Canada say in the British Columbia Court of Appeal about these implications?

 

The decision permits employers who simply believe that hiring trans-people could hurt their business to discriminate against trans-people by not hiring them.

 

The court held that VRR only had to assert a simple belief that the inclusion of trans-women would hurt their clients. It was not required to give more substantial evidence establishing an objective fact-based connection between its decision to exclude Ms Nixon and its purpose as an organization.

 

Egale Canada will argue that:

 

Evidence stronger than a simple belief in this inclusion and resulting harm must be required. In particular, if employers are only required to assert a belief and no one is permitted to challenge the foundations of this belief, then anti-trans discriminatory stereotypes will be allowed to flourish. Since VRR’s purpose is to help all women who have experienced male violence and given that many feminist anti-violence organization do employ trans-women in volunteer and paid positions,4 VRR probably could not demonstrate an objective, fact-based connection. The possibility that some clients may be uncomfortable with trans-people (or any other socially discriminated against group) should not be a justifiable reason for employers to discriminate. The lower court’s decision–by creating a very low evidence standard and a broad justification–opens huge exceptions to the application of human rights law in employment situations.

 

The decision gives VRR the exclusive ability to determine who is a woman.

 

Human rights legislation permits groups, that have as their primary purpose the object of benefiting a particular group, an ability to give preferences to members of this group. For example, a church or disability rights group can have a policy preferring the hire of persons of the faith or persons with disabilities. This ability is usually called a “group exemption.” The court held that VRR, which had a group exemption permitting it to favour women, also had the exclusive ability to determine who is a woman in order to protect itself as a women-only organization. The court held that VRR could examine biological factors and determine whether it, as a community, accepted trans-women in order to create this protection. It did not have to look at the genuineness and sincerity of Ms Nixon’s assertion that she is a women.

 

Egale Canada will argue that:
The “group exemption” does not give the group carte blanche to discriminate. Thus, for example, disability rights group could not also prefer the hiring of women over men. This court’s decision to give VRR the exclusive right to decide who is a woman is contrary to the spirit of the group exemption because it permits invidious discrimination within the group without requiring that this discrimination be justified by considering why the exemption was granted in the first place. We will argue the basis for this determination should be an objective assessment of the complainant’s sincerity and genuineness.

 

This decision significantly limits the circumstances in which a human rights complaint would be successful adding the new requirement that complainants establish that the respondents’ action have infringe their human dignity.

 

The court said that the test for proving discrimination under a human rights code should be the same as the test for declaring that a law was unconstitutional because it violated the equality guarantees of the Charter. In other words, the complainant has to establish that the impact of this decision is to infringe on the complainant’s human dignity. Thus the court found that VRR had not discriminated against Ms Nixon because exclusion by a small relatively obscure self-defining private organization did not have an objective and public impact on her human dignity.

 

Egale Canada will argue that:

 

As there are many differences between constitutional equality law and human rights law, this decision makes no sense. For example, someone claiming a Charter right should demonstrate that the government denied him or her access to a “fundamental social institution” or “affects a basic aspect of full membership in Canadian society”. While such tests might make sense given the potential breadth of the constitutional guarantees and the impact of finding a breach (that is, the legislation is struck down), they does not make sense in the context of human rights law were the range of circumstances covered by the legislation are limited. Human rights legislation only prohibits discrimination in the provision of goods and services and in employment. However once complainants have established that the discrimination has occurred in either of these contexts, they should not be required to establish anything else about the quality, nature or impact of the discrimination.

 

To put it another way, this decision effectively creates an exemption from human rights legislation for small private businesses and otherwise significantly limits the circumstances in which a human rights complaint would be successful.
This decision requires complainants to establish that discrimination is not justified.

 

Until the Nixon case, it was well-established law that a complainant only had to show discrimination 1) based on one of the prohibited grounds, 2) in the provision of goods and services or employment. The respondent could then raise various justifications for the discrimination such as making accommodation would create an undue hardship or a group exemption or a bona fide reason for discrimination. The court’s decision places the obligation to justify discrimination on the complainant.

 

Egale Canada will argue that:

 

The lower court decision in the Nixon case fundamentally alters established human rights law by requiring complainants–not respondents—to establish that the discrimination cannot be justified. The case for justification–such as inability to accommodate, rationale for the group exemption, or bona fide reason—ought to continue to rest with the respondent.

 

Egale Canada’s Position on Women-Only Spaces

 

Egale Canada fully accepts the need for women to be able to establish women-only spaces. However, in the same way that such spaces should not be able to discriminate by excluding more marginalized sub-groups of women, like lesbians or racialized women (even if some of their clients would not be any more comfortable with these counselors than with trans-women), they cannot exclude a trans-woman unless they can clearly establish a legitimate reason, connected directly to her abilities, to justify this action.

 

Sometimes, for example, woman-only centres would be justified in failing to accommodate the needs of women living with disabilities because the cost of doing so would impose a significant financial hardship. Rape crisis centres can reject as volunteers those women, including trans-women, who cannot agree with the feminist principles informing the centre’s work or those who are so naive about the pervasive effects of sexism that they would be ineffective counselors.

 

Endnotes
1 http://www.courts.gov.bc.ca/jdb-txt/sc/00/08/s00-0889.htm
2 http://www.bchrt.bc.ca/decisions/2002/pdf/nixon_v_vancouver_rape_relief_ society_2002_bchrt_1.pdf
3 http://www.courts.gov.bc.ca/jdb-txt/sc/03/19/2003bcsc1936.htm
4 Caroline White, “Re/Defining Gender and Sex: Educating for Trans, Transsexual and Intersex Access and Inclusion to Sexual Assault Centres and Transition Houses” (UBC, 2002). Available at www.barbarafindlay.com under the articles link.